[Deathpenalty] death penalty news----ARIZ., GA., N.J., ARK.

[Rick Halperin]

July 19


ARIZONA:

Death penalty resentencing on hold for plea deal


A capital murder resentencing trial set to begin Tuesday has been vacated
while a plea deal is being considered.

Danny Montao, 36, was sentenced to death by a judge for the Aug. 7, 1995,
murder of Raymond Jackson in the Cimarron Unit of the Arizona State Prison
Complex-Tucson.

Montao may enter a change of plea July 26 before Judge Richard S. Fields
if Jackson's family approves of the deal, the terms of which have not been
disclosed.

Montao's sentence was overturned when the U.S. Supreme Court ruled in 2002
that juries, not judges, must decide whether a defendant is sentenced to
death.

Montao was serving 2 concurrent life terms on armed robbery convictions in
Phoenix when corrections officers found Jackson lying facedown on his bunk
in a pool of blood, his head covered with a sheet. He was stabbed 179
times.

Another inmate, David Jimenez, pleaded guilty to 2nd-degree murder in
Jackson's slaying, avoiding a possible death sentence.

(source: Tucson Citizen)






GEORGIA:

Is the death penalty worth this?


Georgians, polls and politicians tell us, want the death penalty. To
paraphrase what comedian Ron White says about Texans, we'd build a
drive-through execution chamber to speed up the process if we could get
away with it.

We can't. There's that niggling constitutional demand for equal protection
under the law to consider. It makes carrying out the death penalty statute
complicated, time-consuming and expensive.

So it was that in hearing rooms a few blocks away from each other in
downtown Atlanta on Monday, the cases of Troy Anthony Davis and Brian
Nichols were being considered.

The pro-bono lawyers working for Davis, who was just hours away from
getting a lethal injection in his arm, were trying to convince the state
Board of Pardons and Parole that his 1991 conviction for killing a cop in
Savannah was based on false testimony from witnesses who have now recanted
or substantially altered their stories. No physical evidence was ever
presented to tie Davis to the murder, they said. He was tried, convicted
and sentenced to death on testimony from 9 witnesses, 7 of whom have
changed their stories. The parole board gave him a 90-day extension.

The Brian Nichols case was before the state Supreme Court the same day for
a much different reason. The high court was being asked to divide the cost
of his defense between the taxpayers of Fulton County and state taxpayers,
who fund the Georgia Public Defenders Standards Council.

Unlike the Davis case, there is no shortage of physical evidence
connecting Nichols directly to the very public events of March 2005. There
is videotape, as well as eyewitnesses and surviving victims of his rampage
through the courthouse and onto the streets of Atlanta.

So, one case is about a convicted man pleading for his life because he may
well be innocent. The other case has less to do with actual innocence than
it does the technicalities in defending someone against a possible death
sentence. Among other things, Nichols' attorneys want to hire a
high-priced expert to make some kind of high-tech, digital presentation at
their client's trial.

If Fulton County had not sought the death penalty, Nichols' trial would be
over by now and he would be safely behind bars for life. Because Fulton
District Attorney Paul Howard wants Nichols executed, the cost of
defending him is approaching $1.5 million, and the trial  already
postponed several times  is still 2 months away. The special judge
presiding over the case contends, correctly, that death-penalty defendants
are entitled to a proper and adequate defense, even if that costs more
than we think it should. If Nichols is convicted and sentenced to die, the
judge can't afford any procedural flaws, before or during the trial, that
could be construed as failure to provide him equal protection under the
law.

"Procedure," ironically, nearly cost Davis his life this week. A 1996
federal law to speed up executions limits the amount of time a capital
defendant has to make arguments in his case. Davis' witnesses didn't
recant their testimony until recently  after the appeals time-limit had
passed. That law effectively prohibits judges in state and federal courts
from reopening cases based on such evidence after the appeals process is
exhausted. Maybe if Troy Anthony Davis had access to the high-priced legal
help that Brian Nichols has received, he wouldn't be pleading for his life
today.

What have we learned this week?

Georgia came very close to killing someone who may be innocent. And it
will cost us millions to defend someone whose deadly actions are
self-evident.

Removing the death penalty from the equation in both of these cases would
better serve the cause of justice. Now we just have to bring ourselves to
admit it.

(source: Editorial, Atlanta Journal Constitution)

**********************

Lawyer: Nichols Jeopardizing Death Penalty


The high cost to Georgia taxpayers of defending the accused, Fulton County
Courthouse shooter, Brian Nichols, may be having a ripple effect on other
indigent murder defendants in Georgia who are facing the death penalty.

A court-appointed attorney for one of those defendants told the Georgia
Supreme Court on Tuesday that he believes the state public defenders
office is short-changing his client and others because the office has
spent more than $1 million, so far, defending Nichols.

"What we're attempting to do is to show that the funding is inadequate in
our case," Walt Britt told the justices, "that the funds need to be made
available by the state. Or if the funds are not made available by the
state that, in fact, that [the] death [penalty] would be struck from this
case, because that would not be a constitutionally acceptable method of
punishment, if there is not effective representation because of inadequate
funding."

Walt Britt is in private practice in Gwinnett County, and was appointed by
a Gwinnett County court to represent an indigent defendant, Donald Steven
Sanders, who is under indictment charged with murder, felony murder, armed
robbery, aggravated assault and possession of a knife during the
commission of a felony.

The Gwinnett County District Attorney is seeking the death penalty.

Britt has been investigating, on behalf of Sanders, how the state pays for
the defense of indigents who are facing the death penalty. Earlier this
year, Britt convinced the judge in Sanders' case to order the state public
defenders office - the Georgia Public Defender Standards Council - to let
him see the financial records of 49 current death penalty cases that are
represented by the office.

One of those cases is the Brian Nichols case.

Brian Nichols is facing the death penalty. He is awaiting trial on charges
of shooting to death 4 people, including a judge, during a crime spree
that began at the Fulton County Courthouse on March 11, 2005.

Britt believes the files on Nichols and the other state-funded defendants
will tell him whether there are any "side deals," as he put it to the
Supreme Court on Tuesday, to give more money for the defense of some
suspects such as Nichols, and less money for the defense of other
suspects.

"This information was relevant," Britt argued, "to enable Mr. Sanders to
show that he was not being provided with adequate funds" for his defense.

But the attorney for the state public defenders office, Robert Remar,
argued that the financial files are protected by attorney-client privilege
and contain confidential information about defense strategy that
prosecutors and the general public should not see.

Even though the judge in the Sanders case ordered the public defenders
office to turn over the files to Britt, the judge in the Nichols case had
already ordered the public defenders office to keep the financial files in
the Nichols case sealed.

Remar wants the Supreme Court to side with the Nichols judge.

"The order [by the Gwinnett County judge] on its face violates the rights
of at least 49 other defendants and requires the production of privileged
materials," Remar said. "The council was directed to produce to the trial
court for its review the entire record of expenses in the Brian Nichols
case, without any redaction whatsoever. Just revealing to the prosecution
the fact that the defendant wants to retain certain experts as consulting
experts, that that, by its very nature, is attorney work product, because
it reveals the thought processes of the attorney in making his or her
decision."

Remar went on to say that "the rights of other defendants should not be
impacted by a claim" by Britt in the Gwinnett County case.

Britt said the attorneys in those other cases could easily redact
confidential information from the files, and prosecutors would not have to
see the files.

"I would never do anything that would, in any way, attempt to corrupt the
defense of Brian Nichols," Britt said after the Supreme Court hearing.

Britt insisted that he needs to see the files in the Nichols case and the
other cases to prove that many of the defendants are "not getting adequate
defenses, because theres not been adequate funding made, and without the
adequate funding, youre not able to provide that defense as required by
the Constitution."

Britt said after the hearing what he told the justices during the hearing,
that the shortage of defense funds is jeopardizing the death penalty in
Georgia.

"If the state fails in their responsibility to adequately fund" the
indigent death penalty defendants, then, "the death penalty should be
taken off the table. In fact, that should not be a possible punishment,
because it would be unconstitutional to impose that punishment upon
someone who cannot adequately defend themselves."

When Britt agreed to take the Sanders case, he contracted with the Georgia
Public Defender Standards Council, at the state's standard rate of $125 an
hour.

By the beginning of this year, the council was temporarily running out of
money, partly because it had already spent so much on Brian Nichols'
defense, and partly because the Georgia General Assembly had not
replenished the councils budget, yet.

One way the council cut costs was to cut the rate paid to its
court-appointed attorneys, from $125 an hour, to $95 an hour, even though
the attorneys had contracts with the council for the $125 rate.

Britt objected, saying he could not adequately represent Sanders at that
rate, and he also told the Supreme Court on Tuesday that he has no
guarantee that the state will grant his requests for funds to hire expert
witnesses and to pay for other costs of Sanders' defense.

"The uncertainty in funding gives rise to a constitutional question as to
whether or not a defendant is being provided a constitutionally effective
representation," Britt told the court.

Britt and his co-counsel in the Sanders case, Douglas Ramseur, had
claimed, earlier this year, during a pre-trial hearing in the Sanders
case, that they could not continue representing Sanders at that hearing
because they had a conflict of interest: they were fighting their
employer, the state's public defenders office, for the financial records
that the office maintained under lock and key. But the judge ordered Britt
and Ramseur to proceed with their motions, anyway, and when they refused
and told the judge that by proceeding they might betray their client, the
judge held them in contempt.

On Tuesday before the Supreme Court they argued their appeal of the
contempt order. They each face a $500 fine and 24 hours in jail if the
contempt order is upheld.

The Supreme Court will now consider that appeal, as well as try to settle
the conflict -- between the 2 judge's orders about the defense files --
without violating anyone's right to a fair trial.

(source: 11 Alive News)

*******************

Attorneys ask for more time in death penalty case


Defense attorney's have filed two more motions on behalf of Dannie Lee
Samuels, accused in the March 2004 strangulation death of Barbara Hefner
in McDuffie County.

One of the latest motions deals with asking the court for a continuation
of any argument or hearing regarding Mr. Samuel's challenge to Georgia's
lethal injection procedures, according to records filed in the McDuffie
County Superior Court Clerk's Office.

That particular motion along with another one were filed a little more
than a week ago, by defense attorneys Michael C. Garrett, of Augusta and
William McGuire, of Atlanta.

The motions came on the heels of a hearing involving other motions that
have been filed in the case. The hearing was held before Toombs Judicial
Circuit Chief Superior Court Judge Roger W. Dunaway Jr.

Chief Assistant District Attorney Woody Davis represented the prosecution
during that hearing. Mr. Davis, as well as District Attorney Dennis C.
Sanders are expected to prosecute Mr. Samuels. Already, the defendant has
been served notice that the state plans to seek the death penalty against
him, if a jury convicts him of malice murder, felony murder and numerous
other criminal charges, including rape.

Mr. McGuire of the Georgia Capital Defender's Office has requested that
officials with the Georgia Department of Corrections send him a copy of
the state's new protocols, which reportedly were amended prior to the
execution of condemned killer John Washington Hightower on June 26. Mr.
Hightower was convicted of murdering his wife and his 2 step-daughters.

"In developing a challenge to the lethal injection procedures that are
currently in place, counsel will need to consult with experts to review
the protocols and who may be called to testify," defense attorneys contend
in their motion. "In order for counsel to effectively defend Daniel
Samuels in this case, counsel will need to conduct a thorough
investigation and examination of the new protocols."

Defense attorneys maintain that Mr. Samuels, a Thomson resident, be
granted an evidentiary hearing on this motion and that the court grant
other such relief to the defendant with regards to this motion.

In the other motion, filed on behalf of Mr. Samuels, defense attorneys are
requesting the court prohibit the state from calling defense experts as
witnesses at his trial. Also, defense attorneys seek to prohibit the state
from arguing to the jury that the failure of the defense to call any
retained expert at trial "implies that the expert had nothing positive to
state for the defense or that the expert must agree with the state's
position."

(source: Augusta Mirror)

***********************

Stay of Execution for Georgia Man


After a 6-hour hearing that had been scheduled for just an hour, the
George State Board of Pardons and Paroles late Monday announced a 90-day
stay of execution for Troy Anthony Davis, a Georgia man who had been
scheduled to die on Tuesday for the 1989 murder of a Savannah, Ga., police
officer.

At the hearing, 5 witnesses gave significantly different evidence than
they did in the 1991 trial that convicted Davis. In affidavits signed
after the sentencing, multiple witnesses said police pressure forced them
to wrongly implicate Davis.

Jason Ewart, Davis's lawyer, has long argued that the courts have ignored
new developments in the case, including the fact that seven of nine main
witnesses recanted their testimony. The Antiterrorism and Effective Death
Penalty Act (AEDPA), a federal law passed in 1996 to limit appeals and
expedite death sentences, forced federal courts to reject Davis's pleas on
procedural grounds, said legal experts.

"People talk about one recantation and they're skeptical about it," Ewart
said after the Board's announcement. "But when you get many and they're
very similar, people start to have questions."

Davis, 38, a former coach in the Savannah Police Athletic League who had
signed up for the Marines, was sentenced to die in 1991 after being
convicted of killing Mark Allen MacPhail, an off-duty police officer, in a
Savannah parking lot. His fight to overturn his conviction has been
hampered by a cut by the federal government in state defender
organizations' funding, as well as by the passage of the restrictive
AEDPA.

On Friday, Georgia Superior Court Judge Penny Haas Freesemann rejected
Davis's last-minute appeal, saying that the recanted testimony did not
provide justification for a new trial. Georgia prosecutors have maintained
that Davis has already had opportunities in court to present his evidence.

While Davis no longer faces imminent death, the stay of execution does not
mean he will go free. Ewart said the board's decision gives his defense
team time to gather more evidence before likely making another appearance
before the board, which can commute Davis' sentence to life in prison or
allow the execution to proceed.

"Obviously it's way too early and we have to get to work, but we have some
breathing room," Ewart said. He added that the overwhelming media
attention kept several witnesses on Davis's behalf from testifying today.

Ewart was talking with TIME when he learned of the stay of execution. He
was lauding the testimony at the hearing of civil rights advocate U.S.
Rep. John Lewis, the Georgia Democrat who was severely beaten during civil
rights marches in the 1960s. "I do not know Troy Anthony Davis," Lewis
said in testimony, according to prepared remarks. "I do not know if he is
guilty of the charges of which he has been convicted. But I do know that
nobody should be put to death based on the evidence we now have in this
case."

Davis was speaking by telephone with his sister, Martina Correia, when she
learned of the Board's decision. He had already been moved to the death
chamber, Correia said. "He was so elated, so prayerful, and he was
thanking everyone for what they were doing for him," Correia said. "He's
so grateful they're not going to kill him tomorrow."

The slain officer's widow, Joan MacPhail, decried the ruling. "I believe
they are setting a precedent for all criminals that it is perfectly fine
to kill a cop and get away with it," she said. "By making us wait, it's
another sock in the stomach. It's tearing us up."

(source: TIME)






NEW JERSEY:

High court upholds new trial for death row inmate


The state Supreme Court has denied a request by the Mercer County
Prosecutor's Office to reconsider its decision overturning the murder
conviction of death row inmate Donald Loftin.

Loftin had been held on death row for the 1992 killing of 37-year-old gas
station attendant Gary Marsh during a robbery. Marsh, an honors graduate
of Rider University, was killed while working part time at a Lawrence gas
station while completing aviation training.

Despite finding "overwhelming evidence" of Loftin's guilt in the Marsh
slaying, last month the high court reversed Loftin's conviction, sending
his case back to Superior Court for a new trial.

In that opinion the court found that remarks made by a white juror to
co-workers during the 1994 trial could have tainted the other jurors. The
juror, who was an alternate, not a deliberating juror, in the guilt phase
of the trial, told them he was going to the hardware store to get "good
ropes" to hang Loftin. The juror explained to trial court Judge Paulette
Sapp-Peterson, who was contacted by those who heard the statement, that he
only made the remark to stop the other employees from harassing him.
Sapp-Peterson did not interview the other jurors at the time.

"There is no room in a capital trial for a juror who expresses a
preconceived opinion of the defendant's guilt," Justice Barry T. Albin
wrote for the majority.

(source: The Times of Trenton)






ARKANSAS:

DNA evidence may connect family member to West Memphis 3 crime scene


More than a decade after three young West Memphis boys turned up dead in a
drainage ditch, Action News 5 has learned DNA evidence may connect a
family member to the crime scene.

14 years ago, three 8-year old boys were found murdered in West Memphis.
Now, there is new information about the investigation.

The murders literally shocked the world.

It used to be wooded but after the 3 boys died it was all cut down. Now
there may be new evidence that could lead to a hearing for the so -called
West Memphis Three.

Our cameras caught the high powered defense team made up of international
forensic scientists and an attorney from California when the group came to
the Arkansas State Crime Lab in Little Rock in May.

They came to look at DNA evidence in the West Memphis Three case hoping to
find something that would lead to a new hearing for Damien Echols, Jason
Baldwin and Jessie Misskelley. What they have discovered is now coming
out.

A Leiutenant from the West Memphis police department interviewed Pam Hobbs
and her ex- husband Terry Hobbs recently.

Pam is the mother of Stevie Branch, 1 of the 3 8-year-old boys murdered 14
years ago in West Memphis.

Sources say DNA from Terry Hobbs, Stevie Branch's step-father, was
discovered in the rope used to tie up one of the boys.

Pam Hobbs recently did an interview that aired on Action News 5 in which
she said she believes another suspect is still out there.

"I feel like the ones that killed my son, the 3 that were tried and
convicted, they are guilty but I am like everyone else, was there someone
else out there other than those three," said Hobbs.

The bodies of the 3 young boys were found in what was known as Robinhood
Park in West Memphis.

Stevie Branch and Michael Moore died from drowning, and Christopher Byers
died from blood loss after he was stabbed in the groin.

The West Memphis Three are behind bars. Damien Echols is on death row. All
3 say they are not guilty, despite their convictions.

The new West Memphis Three defense team hopes to get a hearing on the new
evidence sometime this summer.

Arkansas prosecutors are also looking at the case.

(source: WMC News)